Why Microsoft Won't List Claimed Patent Violations

BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."

Comments

Re:Devil's Advocate

[SecurityGuy]

You're making the Look-and-Feel argument, which was legally thrown out in the 80s, not a patent argument.

Thanks for playing. Please try again.

Re:Like McCarthy holding up an envelope

[cavehobbit]

Yes, there were. But when he held up the envelope it was a total bluff. He had nothing in it.

Re:Like McCarthy holding up an envelope

[Volante3192]

There's a difference between saying "There are 57 card carrying Communists in the Department of Defense!" on national television and "Julius and Ethel Rosenberg are suspected of being Soviet spies because of this evidence."

Just because there's a shark in a lake filled with trout doesn't mean you drain the lake to kill the shark. You could be one of the trout.

Re:Where's Novell?

[ArsonSmith]

What you're thinking about is trademark. A trademark has to be defended or it gets released to public domain. Patents are awarded and are yours until the duration is up.

Re:Where's Novell?

[KarmaMB84]

The deal required that Microsoft also had to pay royalties. Microsoft's revenues are MUCH higher than Novell's so they paid more than Novell paid them.

Re:This can (and thus probably will) go on forever

[moexu]

I don't think the (entire) problem with the SCO case is that the lawyers don't know what they're doing, it's that they don't have anything to work with. Their lawyers are trying every creative stall tactic they can think of, and then trying more, just to get out of having to finally break down and admit that they have absolutely nothing - no evidence, no lines of infringing code, no case.

With 235 possible infringing patents Microsoft has a lot more to work with. I believe that most of the patents will be found invalid and the rest will be worked around, but the process will take time and money.

I wonder if litigation is really in their best interest though. Part of the reason IBM is defending themselves so vigorously against SCO is to defend against the implication that they were behaving unethically; donating someone else's copyrighted code in bad faith to Linux. IBM makes a good deal of money supplying products and consulting services based around Linux. Wouldn't IBM's business be threatened by implications of intellectual property problems? Does Microsoft really want to go up against IBM over patents? Whatever you may think of SCO's legal team, IBM's is frighteningly competent.

Re:Equitable Estoppel or Laches?

[deblau]

They will tell people which patents are being violated -- when they send cease & desist letters or file a lawsuit. There might be a case of laches, but it won't become a defense unless MS actually fails to sue for awhile for no good reason. We'll have to wait and see on that count -- they've got six years to file, although laches may cut into that. Equitable estoppel won't apply unless MS sends C&D letters to individuals or companies, instilling the apprehension of an imminent lawsuit, and THEN fails to sue, leading the company to (reasonably) assume that MS was just bluffing. AFAIK, MS hasn't sent any letters yet, they're just posturing.

On the other hand, MS may have "used in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of ... another person's goods, services, or commercial activities." See here. Note to /. geeks: learn the words "Lanham Act" and "unfair competition." Oh wait, MS would never be guilty of unfair competition, what am I thinking...

Re:Department of Redundancy Department

[jmorris42]

> I know this is Slashdot and everything, but at what point do the Microsoft stories become redundant?

This story justifies the coverage. It is almost certain to grow into THE dominant tech story for 2007 and will almost certainly still be dragging through the courts come the end of the decade. On the outcome rides billions of dollars, massive egos and the fate of the entire IT industry.

Re:Declaratory Judgement

[bb5ch39t]

I think this is possible from something called "the Latham Act" which is about unsupported claims which can negatively impact a company's business.

Re:Where's Novell?

[rainman_bc]

I know that the TCP/IP in Windows was derived from BSD.

Are you familiar with the terms of the BSD license? Last I heard BSD was a free, permissive license?

Maybe Microsoft "owes" to you, but according to the BSD license isn't Microsoft free to implment that TCP/IP stack at will?

Re:Where's the Cease and Desist?

[theonewho]

IANAL IAHEP

the lanham act (15 USC 1125) is intended to protect companies from assertions such as those that microsoft is making with respect to FOSS -- from http://en.wikipedia.org/wiki/Lanham_Act#Subchapter _III:

"Section 43(a)(1)(B) is also often utilized in law when false or misleading statements are alleged to have hurt a business. To be proven in court a claimant must satisfy 3 principles: There was a false or misleading statement made, the statement was used in commercial advertising or promotion, and the statement creates a likelihood of harm to the plaintiff."

i believe linux and other FOSS is protected under the law to the extent that it is trademarked -- therefore, the holder of the linux trademark (the linux mark institute?) among others should have standing to file against microsoft

Re:Declaratory Judgement

[notamisfit]

It's the Lanham Act, and I think that in this case it would probably be a really stupid thing for a company like Red Hat to do. Out of 235, they really only need one upheld patent to hang themselves with.

Re:Declaratory Judgement

[tyme]

cpaluc wrote:

Isn't it be possible to get some sort of declaratory judgement from a court? Say you're RedHat (or any other Linux distributor), who happens to sell Linux and related services - in light of MS's statements, wouldn't you be entitled to know which patents are involved? MS's statements have a direct impact on your business.

And if MS refused to tell you then couldn't you get a declaration from a court that your product doesn't infringe? IIRC, this is similar to what RedHat is pursuing in its case against SCO (which is on hold while SCO v IBM drags on).

Maybe a small Linux distributor with no assets and not much to lose could pursue a case like this against MS.

First, any party bringing a lawsuit under the American legal system must have standing to sue, meaning that they must have a material interest in the outcome of the suit. Since Microsoft has not specifically threatened anybody, at the moment, it would be hard to establish standing. A really good lawyer might be able to argue that a Linux vendor is harmed by the implication that Microsoft will sue that vendors customers for patent infringement, but with any actual patent suits in process, it would be a hard sell.

Second, the American legal system refuses to issue advisory judgements, and requires that a case be 'ripe' before it can be adjudicated. Since the court would be ruling on a hypothetical ("if Microsoft were to sue for patent infringement, would we be found to be infringing?") the court would (and should) simply refuse to hear the case.

Here is a good reference for standing, advisory opinions and ripeness. A little google-foo should easily turn up others.

The only bright spot in this, from a potential plaintif's point of view, is that, as a convicted monopolist, there might be a way to accuse Microsoft of restrain-of-trade, or some other violation of the Sherman Act. Unfortunately, I think that prosecution of anti-trust cases must be brought by the federal government, and that is not very likely with the current administration. Private actions can be brought for violations of the Clayton Act but I don't quite see how it could aply in this case, and only consumers injured by their dealings with the violator have standing to sue, which puts most direct competitors out of the running.

Disclaimer: IANALBIHTBL (IANAL But I Have Taken Business Law)

Re:Declaratory Judgement

[belmolis]

This is no longer true. A recent decision has relaxed the requirements for declaratory judgements in cases of alleged patent infringement. See http://www.wiggin.com/db30/cgi-bin/pubs/IPadvisory March2007.pdf.

Call the bluff

[Spazmania]

A DRAFT Open Letter to Microsoft General Counsel Brad Smith

Dear Mr. Smith:

My name is ______. I am the maintainer for Linux kernel 2.6. I package its various components for general distribution.

It has come to my attention that that you allege the Linux kernel infringes 42 Microsoft patents. It is my emphatic belief that the Linux 2.6 kernel infringes no intellectual properties, least of all Microsoft's patents. Nevertheless, I will rigorously investigate any bona fide infringement claim and take appropriate remedial action.

Accordingly, I ask that you specify the 42 patents you allege to be infringed. Please include concise technical descriptions of the allegedly infringing components of the Linux kernel and the claims which you believe each component violates. For the sake of everyone's peace of mind, I ask that you do so no later than July 1, 2007.

Until such a time as you have done so, I insist that you refrain from making further potentially slanderous remarks to members of the press regarding the legality of the Linux kernel and thus of my behavior as its maintainer.

Respectfully Yours,
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